In what may be considered a surprise ruling, the United States Supreme Court has struck down Florida’s death penalty law. And while the ruling is specific to Florida, and not the death penalty in general, the decision emphasizes just how important the jury system is to our constitution.

Florida’s Death Penalty System

Traditionally, the death penalty has been contested on the grounds that it constitutes unfair and cruel punishment, which is prohibited by the U.S. Constitution. Usually, that argument fails in federal courts.

But this case was different because it dealt with a Florida law that allowed a jury to “recommend” whether the death penalty should be imposed. In fact, the law did not even require the jury find specific factors, supporting why they would advise or not advise the death penalty.

Unlike in a traditional jury system, in Florida the judge had the legal authority to make factual findings and then, if the judge felt it warranted, to ignore the jury and find differently than the jurors. The jurors’ decision to impose or not impose the death penalty really was simply a recommendation.

Judges had used that authority willingly. By one count, judges had found differently than juries in 300 occasions (although that number includes situations in which the jury may have recommended the death penalty and the judge imposed a lesser sentence).

Law Undermines Right to a Jury

As you may have guessed by now, the challenge to the law was that it takes the decision out of the jury’s hands, thus denying the criminal defendant the constitutional right to trial by jury.
What makes the case even more surprising is that Florida’s law had been challenged and upheld in the past. Usually, courts abide by precedent—that is, they are reluctant to overturn something they decided a certain way in the past. But here, the Court noted that time and society had changed their previous opinion.

That is likely recognition of how many states deal with the death penalty the same way that Florida did—very few have the “recommendation” system that Florida used. In 2002, the Supreme Court actually struck down an Arizona law similar to Florida’s.

The question of whether the ruling is retroactive will likely be determined by the Florida Supreme Court on a case by case basis. So people on death row right now will likely have to mount their own individual challenges on a constitutional basis to lower their sentences.

As of today, only Alabama has a law similar to Florida’s. The recent case is hardly a denouncement of the death penalty itself, and will have limited effect on any attempt to invalidate it, unless there are laws that take decisions out of the jury’s hands.

If you are arrested or charged with a crime make sure that all of your constitutional rights are protected at every stage. Contact the attorneys of Brassel, Alexander & Rice, LLC today for a free consultation to discuss your rights.

By now most everybody is familiar with Colorado’s lenient marijuana laws (or rather, Colorado’s abolition of marijuana restrictions). Whether we agree with their position or not, we generally understand that states can make their own laws and are free to govern themselves. But there are limitations on that idea, as a lawsuit against the State of Colorado is demonstrating.

When States Can Regulate

First, it is important to remember that states do not have the ability to make whatever laws they want about just anything. Generally, states do have the ability to create and enforce their own criminal laws. States cannot make laws that impede upon powers of the federal government.

Anything that affects “interstate commerce” cannot be regulated by states, but must be regulated by the federal government. For example, a state could not declare that their residents do not have to pay federal income tax, or that their residents can become citizens of their state by a method other than federal immigration procedures.

Colorado Gets Sued by Neighboring States

But Colorado’s marijuana laws are running into trouble because Colorado is being sued by its neighboring states, Oklahoma and Nebraska. They contend that because of Colorado’s lax laws, residents of Oklahoma and Nebraska are going into Colorado, obtaining marijuana, and bringing it into their states. As such, they contend that Colorado’s laws are affecting their crime rate and increasing marijuana crimes.

They do not contend that Colorado has authorized such practices. The violations—getting marijuana in Colorado and transporting it over state lines—are the actions of private citizens, actions that are not authorized by Colorado law. Thus, the case against Colorado may not have merit. Colorado argues the lawsuit is an impermissible attempt by neighboring states to regulate Colorado’s laws.

Nonetheless, those states have now asked the United States Supreme Court to block Colorado’s laws.

Federal Government Gets Involved

The Supreme Court has in turn asked the federal government to weigh in and give its opinion on the problem. Officially, the Obama administration has opposed legalization of marijuana, but has not taken any actions against states to prohibit them from legalizing it. In this case, the government has taken the position that the dispute between the states is not something the supreme Court should hear.

The court brief filed by the administration takes the position that ruling on the case would impermissibly expand the Supreme Court’s jurisdiction. While the Court has ruled on state disputes against each other, it has traditionally not ruled on a case like this, where it is not a state’s actions being contested, but the activities by a state’s residents. Thus, the government has not approved or opposed the drug laws themselves, only the Court’s jurisdiction to hear the case.

For legalization of marijuana proponents, the case looks like it will be won by Colorado, and Colorado’s drug laws will be permitted to stand.

If you are arrested or charged with a drug crime, make sure you understand your rights and get a strong defense. Contact the attorneys of Brassel, Alexander & Rice, LLC today for a free consultation to discuss your rights.

As you likely know by now, a mistrial has been declared in the Freddie Grey trial, due to a hung jury. You may be wondering what a hung jury is, and how it happens.

How Hung Juries Happen

In some civil cases, only a majority of jurors need to agree in order for a verdict to be rendered. But in criminal matters, generally, jurors must be unanimous. A hung jury is when a jury cannot get unanimous consent to convict someone of a crime.

As you might imagine, because unanimity is required, it only takes a single juror to “hold out” to have a hung jury. If 11 jurors want to convict and one does not believe that there is proof beyond a reasonable doubt to convict, the jury ends up hung.

Where there are multiple counts against a defendant, a jury can “hang” on some counts, and render a verdict on others. Hung juries result in mistrials, which do allow the state to retry the defendant on those counts.

Who Benefits From a Hung Jury?

Practically, a hung jury can be an advantage to a defendant. Aside from the obvious—the defendant wasn’t convicted—the case against the defendant would have to be retried by the state. But the second time around, the defendant often has the tactical advantage of knowing what state witnesses will say and what the evidence will be (although the state has the same advantage as to the Defendant’s evidence and witnesses).

Sometimes, faced with the specter of a brand new trial and the cost and uncertainty that goes with it, prosecutors will offer a more favorable plea deal to defendants.

The judge in the Freddie Grey trial has ordered the lawyers for both sides not to speak with jurors, so it is impossible to know why the jury was hung, but in most cases, it is simply a matter of both sides being persuasive.

The Grey Trial

Practicalities often come into play, as well. In cases like Grey’s, where there are no videos or cameras and stories are often he-said she-said, it may be harder for a jury to come to a conclusion. In cases like this one, where a jury must determine if someone’s actions were “reasonable,” a vague and subjective term, it can be difficult for a jury to reach a consensus.
A strong defense in court can be persuasive to a jury. If you are charged with a crime make sure your attorneys understand how to ensure you get a fair trial. Contact the attorneys of Brassel, Alexander & Rice, LLC today for a free consultation to discuss your rights.

The constitution guarantees criminal defendants the right to an attorney if charged with a crime. But many who are arrested do not have the means to hire private attorneys. Thus, the government provides those in need with representation through public defenders—public attorney employees who are paid by the government.

A recent case demonstrates the problem with the system and how stretched resources are in most defenders’ offices.

Error by Public Defender

The case involves a wife who was convicted of murder after shooting her husband’s ex-wife. According to the prosecution, she then left the scene and went to an Amway conference in an attempt to set up an alibi. Both she and her husband were convicted.

Then the story takes a strange twist. The wife has now asked for a new trial, contending that she wanted to testify against her husband, but the public defender told her that she could not do so. She claims that had she been allowed to testify, she would have told the jury that she was actually drugged and thus not at the scene, and that her husband had snuck out of the house, dressed as woman, and shot his ex-wife.

Despite how the story sounds, in fact hair dye and a wig were found with the husband when he was tracked down after the shooting. Thus, there is some indication that the public defender telling the wife that she was not legally permitted to testify against her husband, prevented her from presenting a valid defense to the jury.

Fatigue and Huge Case Loads Burden Public Defenders

The error by the public defender is now being blamed on fatigue and an overwhelming case load. The case is being used as a demonstration nationally as to how overworked public defenders are and how that affects the rights of the underprivileged, who must rely on public defenders as their only means of defending themselves from criminal charges.

The public defender in this case was well regarded and very experienced. Thus, it is not always a lack of training or experience that jeopardizes the rights of criminal defendants.

Many public defenders are good attorneys and good public servants. But between the often nominal pay and the enormous need by the public for criminal legal representation, most public defender’s offices are severely overwhelmed. Sadly, because of public perception, funding to hire additional defenders is often not politically popular.

Certainly, there is no guarantee that even had she been able to testify, that the jury would have believed the wife in this case. Still, the right to testify on one’s behalf before a jury is a fundamental right and one that the wife says she was denied when the public defender advised her that the judge would not allow her to testify.

If you are charged with a crime, make sure you have the best representation possible, to make sure your constitutional rights are safeguarded. Contact the attorneys of Brassel, Alexander & Rice, LLC today for a free consultation to discuss your rights.

We all know that like any writing, text messages are binding and admissible, and on numerous occasions, judges have made crucial decisions based on admitting text messages as evidence. Although text messages are not new, the law usually takes some time to catch up to technology. A fascinating recent case out of Michigan is once again requiring a court to interpret a new way that we communicate.

Man Sues Based on Emoticon

The case involves a Michigan law student who sent what appeared to be abusive and harassing text messages to a college student. The state prosecutor investigated the matter but refused to prosecute. Then, the student took the offensive, suing the school for harassment and claiming the investigation was without cause.

The student claimed that his text message should never have been construed as harassing, because at the end of the messages, he included an emoticon that looked like “:-P,” a symbol that, according to the student, conveys sarcasm, or otherwise relays to the receiver that the sender is not serious about what is being written.

Thus, the Court will have to decide what the meaning of “:-P” actually is—an interpretation that many lay people often do not understand.

Supreme Court Taking Up Issue

This is not the only time a court has had to determine the meaning of an emoticon. The U.S. Supreme Court is scheduled to hear a case involving a man who allegedly threatened his wife in a Facebook post, but who claimed that the threat was in jest. The poster argued that the post was actually rap lyrics, as was indicated by an emoticon at the end of the post, and that his first amendment rights protects his words.

Many of these cases hinge on whether intent matters. Even if an emoticon “lessens” the impact of written words, many criminal laws say that if the receiver (or an objective person) could reasonably interpret the words as threatening, they are illegal. The Supreme Court will determine whether that standard violates someone’s first amendment free speech rights.

Jury Will Often Decide Meanings

In many cases, it will be a jury that will read and interpret the meaning of emails and emoticons. Some may be familiar with their meaning and others may not.

There may even be disputes over whether emoticons get read to a jury or not. Because of the vague and ambiguous interpretations, many prosecutors may seek to shield emoticons from being seen by jurors during a trial.

Just as sarcasm or jesting often does not show through in electronic media, neither does the meaning of an emoticon. A juror could just as easily interpret 😛 as mocking and threatening, as opposed to indicating something is said in jest. Because criminal defendants often do not testify, as is their fifth amendment right, there may be nobody to interpret what an emoticon actually means.

If you are charged with a crime, make sure that the evidence you need is used to your advantage. Contact the attorneys of Brassel, Alexander & Rice, LLC today for a free consultation to discuss your rights.

No matter where they stand on gun control, one thing that most people can agree on is that whatever laws exist should be followed and that serious consequences can result from failing to abide by gun control laws. Maryland happens to have one of the more rigorous set of gun control laws, and now gun-control advocates are trying to make it a model for other states in the nation to follow.

Maryland’s Gun Control Laws

Maryland’s gun control laws became much tougher in 2013 when new restrictions were passed.
Maryland requires that any handgun owner possess a license. It does not matter if the gun is open, concealed, in your car, in your boat, etc. – an owner must have a permit or license to own it. The law does not apply to guns being kept in someone’s own home.

Background checks on potential purchasers are also conducted, and law enforcement maintains an active roster of those who own guns.

Open carry permits are not easy to get. Those seeking a permit must show why they need to carry openly. This usually involves showing that one’s life or safety may be in jeopardy. There is no need for a permit for shotguns or so-called “long guns.”

Machine guns must be registered annually with the state, as well, and assault weapons with magazines that carry more than 10 bullets are prohibited.

No more than one gun can be purchased within a 30-day period and there is a seven-day waiting period before purchasers can take their guns home.

Laws Have Been Challenged in Court and by Neighboring States

Some of those laws are being challenged in court. Parts of the 2013 laws that banned numerous kinds of assault weapons from being owned at all were upheld by a federal judge, but the decision is on appeal.

While Maryland’s laws are serious, Mayland does border on states such as Pennsylvania, West Virginia, and Virginia that have much more lenient laws. Thus, Maryland tends to see an influx of guns that were bought legally in bordering states and brought across state lines.

Legislators argue that Maryland’s laws have limited effect without other states following its lead and have pushed to have Maryland’s laws be passed nationally.

Traveling in and out of Maryland

About 17 states honor Maryland’s licensing, meaning that so long as carrying a weapon is legal in Maryland, it is legal in whatever state the gun owner is in. However, the reciprocal is not always true. Even if carrying a certain gun a certain way in your home state is legal, that does not mean that Maryland recognizes those laws.

Visitors need to make sure that they are in compliance with Maryland’s gun laws. For example, owning a weapon that does not require a permit in your home state is illegal to own if you come into Maryland with it and it has no permit.

Violating gun laws can lead to serious charges, and some of the laws can be complex. If you have been arrested or are charged with a gun-related legal violation, contact the attorneys of Brassel, Alexander & Rice, LLC today for a free consultation to discuss your rights.

When a criminal defendant has served a sentence, completed probation, or paid the fines, the repercussions from sentencing can follow him or her for years to come. That is because even after the price has been paid and civil rights restored, many people find the public record of what happened to them preventing them from finding housing or employment.

Public Records Can Create Problems

Public records of convictions can hamper someone’s ability to get a job and affect anything that requires background checks. Defendants who may feel they are innocent, but take a deal to mitigate punishment, still have the conviction on their record. Even those who may have had charges dismissed often find the interaction with the criminal justice system on their records.

Certainly, the public as well as employers deserve to know if someone has a criminal history, and background checks serve an integral purpose to keeping us all safe. But for many, the stigma of a criminal history can prevent them from making a fresh start.

New Law Allows Fresh Starts

Maryland has now passed a law that makes it easier for those who are convicted of a crime to expunge or hide criminal histories. For certain offenses the law allows a public record to be “shielded,” which means that it will be hidden from public view (and thus, any employer doing a background check), but will still be available to law enforcement.

For other charges, and for those who had charges completely dismissed, the record can be expunged, or completely erased. Charges relating to certain offenses that are now considered “non-criminal,” such as possession of small amounts of cannabis, are also able to be expunged.

The law will apply to non-violent offenses, such as destruction of property, possession of marijuana and other dangerous substances, and prostitution. Theft-related offenses are not covered under the new law.

Awareness of Recidivism

The law was spurred by the new effort nationally (as we discussed here on the blog a few weeks ago) to reduce the rate of recidivism (repeat offenders). The hope is that those who are able to obtain gainful employment after prison or parole are less likely to re-enter the criminal justice system. Maryland is not alone. At least 31 states have passed similar laws since 2009, designed to assist people in re-entering the job market.

Not everybody favors the new law. Many employers have expressed concern over the ability to fully vet their potential hires. But many are taking advantage of the new law, some even lining up for “expungement fairs,” where those who qualify can get assistance from legal aid organizations in shielding their records.

You may be able to clean up your public record or avoid any criminal record at all with the right criminal defense. Contact the attorneys of Brassel, Alexander & Rice, LLC today for a free consultation to discuss your rights.

It looks like reform may be coming to Maryland’s criminal justice system. Legislators have made criminal justice reform a top priority, and while nothing has passed yet, Maryland appears to be getting on board with the national realization that more prison sentences and prison inmates do not mean more safety or rehabilitation.

Recidivism and Prison Rates Cause Concern

A major concern of any criminal justice system is the rate of recidivism–that is, how often criminals repeat their offenses and end up back in the criminal justice system. In the U.S., the issue is particularly important, as one study has shown that this country houses over half of the world’s prisoners. The prison problem has grown as many states passed mandatory sentence laws that prevent a judge or jury from having discretion in sentencing.

Legislators have noted that in Maryland, many convicts are more likely to commit crimes when they leave prison than they were before they entered. One study shows that four of every ten offenders will end up back in jail after three years.

Maryland and Other States Consider Options

Alternatives have been tried in other states. In Texas, legislators have opted for home detention, probation, increased supervision, and other non-incarceration options. These plans have also saved Texas millions of dollars, as supervising people through parole programs is cheaper than building or maintaining prisons.

Maryland’s governor recently signed a bill forming the Maryland Justice Reinvestment Coordinating Counsel to study these issues. And reforms are needed. For example, 58% of those who ended up in state prisons were there for violating parole. That means that the entire parole system may need review and revision.

But those who are in parole successfully have a much lower rate of recidivism than those who serve time in prison, according to a study by the Pew Charitable Trust.

Additionally, inmates are actually spending 23% longer in prison today than they did ten years ago.

Maryland has made some headway in decreasing the prison population by changing certain drug crimes to “non-criminal” infractions. Given that more people end up in Maryland prisons for drug crimes than for any other offense, this is an important change in the law, but it is likely too early to determine the change’s effect on Maryland’s prison population.

Many of the proposed changes will not affect the most violent criminal offenders. For those who are considered low-risk, the urge to rehabilitate instead of incarcerate is taking hold nationwide.

Harsh sentencing laws make it all the more important for you have an attorney that understands all of your options if you are charged with a crime. The attorneys of Brassel, Alexander & Rice, LLC have extensive experience in trying criminal cases. If you or someone you know was arrested or charged with a crime in Maryland, contact the attorneys of Brassel, Alexander & Rice, LLC today.

Recently we considered the issue of how the constitution interplays with officers’ ability to search and seize cell phones. The law is ever changing and creates fascinating constitutional questions, so this week, we will look at another case involving the same topic, but with a different angle.

Text Message Leads to Conviction

The case involves an officer who testified that he received information about a drug deal from an informant. When he arrived at the scene, the officer observed a golf cart near a Nissan, a man standing between them, and the Defendant in the case sitting in the passenger seat of the Nissan.

The officer asked the men if they had any drugs on them. A man said he had a “bowl” on him, and the officer searched him. The Defendant, still in the car, said that he had pills, which the officer believed were oxycodone. The Defendant told the officer he had a prescription for them.

The officer searched the Nissan and found a cellphone, which the officer stated was ringing. The Defendant allegedly stated the phone was his. The officer opened the phone, and saw text messages that he believed were people looking to buy pills. After obtaining a warrant, the remainder of the phone was searched.

The Defendant’s motion to suppress the cell phone information as an unreasonable search and seizure was denied, the Defendant was convicted, and appealed.

Appeal Hinges on Old and New Laws

On appeal, the state argued that the officer only conducted a cursory on-site look at the phone, and the text messages were in plain view when he opened the phone.

In 2012, the United States Supreme Court did determine that a search of a cell phone required a warrant. In that case, the phone was a smartphone. But here, the phone was a “flip-phone”–meaning that information is readily visible just upon opening the phone. Thus, the text messages fell under the plain view doctrine, which says that anything that an officer can readily and immediately view does not require a warrant.

The Court also noted that the officer went no further than viewing the readily-observable text messages and did obtain a warrant before delving further into the phone’s database.

In the end, the appellate court upheld the conviction and ruled the search and seizure was constitutional because the incidents in this case occurred before the 2012 Supreme Court case. Officers are permitted to rely in good faith on the state of the law as it exists at the time they conduct an arrest. In fact, Maryland’s laws concerning such searches provided broad leeway to officers at the time the events of this case occurred.

Thus, the text messages observed by the officer were held to be admissible, and the conviction was upheld.

Fighting the admissibility of evidence is the difference between winning and losing a criminal trial. The attorneys of Brassel, Alexander & Rice, LLC have extensive experience in trying criminal cases. If you or someone you know was arrested or charged with a crime in Maryland, contact the attorneys of Brassel, Alexander & Rice, LLC today.

The Maryland police officers who are defendants in the Freddie Gray trial just won what could be a big legal victory, even though their trials are a long way off. The court recently granted a request by the officers to have their cases tried separately. Putting aside the facts of the Gray case specifically, the ruling gives us an opportunity to consider the benefits of trying cases separately when there are multiple defendants.

Can Defendants Get Separate Trials?

Many crimes involve more than one perpetrator, and there can be multiple defendants charged with one particular crime. We tend to assume that they all will be tried together, in one trial, even if they are each charged with a different crime. Generally, doing that makes sense. If witness will be the same and physical evidence will be the same, why have two separate trials just because there may be two separate defendants?

Criminal defendants have a right to ask the court for a trial separate from their co-defendants. There may be a lot of reasons why this is not just beneficial, but in fact, may be necessary to preserve a criminal defendant’s due process rights.

The Benefits of Separate Trials

The biggest reason why a separate trial may be ordered is when there is a risk of one defendant “tainting” the other. Assume, for example, that one person shoots a convenience store clerk and the other stays in the car and drives it away when the crime is over.

Surely, both can be charged with homicide, even though only one pulled the trigger. In the minds of a jury, shooting someone may be perceived as worse than “just” driving the getaway car. The “getaway car” defendant may be concerned that a jury may, in its anger towards the shooter, convict both without analyzing each defendant’s facts and evidence separately. The “getaway car” defendant may not even want the perception of being associated with the shooter.

Disadvantages to Separate Trials

There are some disadvantages to separating trials, however. There could be an inconsistent verdict. One defendant could be convicted and the other acquitted, on almost identical facts. The defendant whose trial is first may be at a disadvantage because the second defendant now knows what the witnesses will say about the incident.

There is also the risk that the first defendant, perhaps already convicted, or pursuant to a deal, testifies against the second.

In higher profile cases, like the Freddie Gray case, if a verdict causes unrest or social disorder, the later defendants may also be concerned about getting a fair jury that is unaffected by public perception or by what is happening around them.

Contact a Criminal Defense Attorney Today

Like almost every legal decision in a trial, decisions can have good and bad side effects. There is rarely a right or wrong choice for every case, which is why it is vital to have an attorney that can weigh the options as to your particular scenario.

Criminal trials are often won by decisions made before the trial even starts. The attorneys of Brassel, Alexander & Rice, LLC have extensive experience in trying criminal cases. If you or someone you know was arrested or charged with a crime in Maryland, contact the attorneys of Brassel, Alexander & Rice, LLC today.